United States District Court, E.D. California
FIRST SCREENING ORDER ORDER DISMISSING COMPLAINT FOR
FAILURE TO STATE A CLAIM, WITH LEAVE TO AMEND (ECF NO. 1.)
THIRTY DAY DEADLINE TO FILE AMENDED COMPLAINT
S. AUSTIN, UNITED STATES MAGISTRATE JUDGE
Lee Powell (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis
with this civil rights action pursuant to 42 U.S.C. §
1983. On April 12, 2017, Plaintiff filed the Complaint
commencing this action, which is now before the court for
screening. (ECF No. 1.)
court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
The court must dismiss a complaint or portion thereof if the
prisoner has raised claims that are legally “frivolous
or malicious, ” that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
1915A(b)(1), (2). “Notwithstanding any filing fee, or
any portion thereof, that may have been paid, the court shall
dismiss the case at any time if the court determines that the
action or appeal fails to state a claim upon which relief may
be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
complaint is required to contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). Detailed factual
allegations are not required, but “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 1949 (2009) (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)).
While a plaintiff's allegations are taken as true, courts
“are not required to indulge unwarranted
inferences.” Doe I v. Wal-Mart Stores, Inc.,
572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks
and citation omitted). Plaintiff must set forth
“sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Iqbal 556 U.S. at 678. While
factual allegations are accepted as true, legal conclusions
are not. Id.
state a viable claim for relief, Plaintiff must set forth
sufficient factual allegations to state a plausible claim for
relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S.
Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The
mere possibility of misconduct falls short of meeting this
plausibility standard. Id.
SUMMARY OF COMPLAINT
is presently incarcerated at the California Institution for
Men in Chino, California. The events at issue in the
Complaint allegedly occurred when Plaintiff was incarcerated
at Avenal State Prison in Avenal, California, in the custody
of the California Department of Corrections and
Rehabilitation. Plaintiff names as defendants Dr. S. Ramain,
Dr. Mahmud, Dr. Dabw, Dr. B. Brees, Dr. Huynh, PCP J.
Telemece, and PCP J. Melarth (collectively
“Defendants”). Plaintiff's factual
alleges that Dr. Rahimifar stated that Plaintiff had a pinched
nerve in his back, and they gave Plaintiff Tylenol for pain
for two to three months. After Plaintiff was unable to walk
and lost fifty pounds he was sent to Bakersfield Mercy
Hospital where they gave him an MRI, found that he had Valley
Fever, and immediately operated. They removed half a rib and
half a lung, and placed a metal rod in his back. Now
Plaintiff has arthritis in both knees and believes he will
walk with a cane the rest of his life. Due to Dr.
Rahimifar's misdiagnosis, Plaintiff is now disabled for
life. He also suffers from back pain that he describes as
level “8 to 10” on average. Plaintiff also
alleges that defendant PCP Melarth stated numerous times that
Plaintiff had a pinched nerve his back. Defendant Melarth
caused Plaintiff undue pain and suffering.
seeks monetary damages.
Civil Rights Act under which this action was filed provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party ...